Tuesday, January 19, 2010

Prop 8 Trial Review, Days 1 and 2

Over the long weekend, I finally had time to catch up on transcripts of the Prop 8 trial, Perry v. Schwarzenegger.

But first, unfortunately, the US Supreme Court has banned the live broadcasting of this trial. The pro-Prop 8 side argued that witnesses feared public recrimination and possible harassment based on their anti-gay positions and then produced evidence, mostly in the form of newspaper articles, of real and imaged threats and acts of harm against Prop 8 supporters after Prop 8 was passed. In banning the videotaping, the Supreme Court cited in its decision [PDF] this evidence, some of which is also outlined in the Heritage Foundation's dubious "The Price of Prop 8" report, a collection of mostly hearsay, hyperbolic, anonymous allegations against marriage equality advocates.

Justices Breyer, Stevens, Ginsburg, and Sotomayor dissented from this decision, cogently noting that all of Prop 8 side's witnesses "are already publicly identified with their cause" and have already appeared all over the internet and television advocating a "Yes on 8" position. In short, broadcasting their testimony won't reveal their identities as being for Prop 8, because they are already publicly associated with the cause. Thus, the likelihood of "irreparable harm" to these witnesses is insignificant, especially given that newspapers and internet sources covering the trial will be citing the names and testimony of these expert witnesses anyway.

That's why I think the Prop 8 side's exercise in opposing cameras in the courtroom was actually a nifty little stunt to make the judge, who is the sole arbiter of this case, aware of the Poor Prop 8 supporters who have been victimized by the Angry Gay Mobs. Judges are human and, as much as the Prop 8 side critiques the pro-gay side for playing on people's emotions, those opposed to equal rights know damn well how to play the victim card themselves.

Nontheless, the Courage Campaign Institute has been covering the trial live from the courthouse. In addition to trying to follow live Tweets from the National Center for Lesbian rights, which is really its own modern art form, I've read all of the trial transcripts at the Courage Campaign's trial tracker. My summaries of each day are below. Instead of merely reciting the testimony, which can be easily found on the Courage Campaign website, my goal is to explain how the testimony is relevant to the pertinent legal issues:

To put it generally, the question at issue is whether Prop 8 is unconstitutional discrimination against gays and lesbians. In order to make that determination, the court will apply a particular level of scrutiny to Prop 8 in order to determine whether a good enough reason exists for it to be a case of "constitutional" discrimination. Yes, sometimes, discrimination is considered constitutional, there just has to be a good reason for it.

However, measures that discriminate against certain groups are considered to be "suspect classifications." That is, measures that discriminate against discrete and insular minorities, who possess immutable traits, who share a history of discrimination, and who are relatively politically powerless, are likely to be found unconstitutional. Thus far, courts have been reluctant to apply this stringent test on measures that target gays and lesbians.

That's not to say a court would never apply that test to gays or that a court's refusal to do so is fatal to the marriage equality side; indeed, the Supreme Court famously struck down a Colorado anti-gay law using the lesser "rational basis" review in 1996. And so, perhaps to preclude the Prop 8 side from being able to convince the judge that there is any sort of "rational" reason for Prop 8, in his opening statement, Ted Olson, attorney for the marriage equality side, spoke in the lingo of the lesser "rational basis review," arguing that there is "no rational justification" for Prop 8's discrimination against gays and lesbians and that Prop 8 serves "no legitimate state interest."

For its part, the Prop 8 side is trying to prevent the court from applying a higher level of scrutiny to Prop 8, arguing that gays and lesbians are not a suspect class since gays are politically powerful and no longer discriminated against. Specifically, the Prop 8 side's main arguments, as ascertained from their opening statement, seems to be that discriminating against gays and lesbians with respect to marriage laws is okay because (a) the purpose of marriage is procreation (b) countries and states that have legalized same-sex marriage have led to "societal harm," (c) gays wield significant power and are not an embattled minority, and (d) Prop 8 was not motivated by anti-gay animus, but the belief in an institution that has always been between a man and a woman.

Given that same-sex marriage has been defeated by votes of "the people" in nearly every contest that's happened in the US and that Prop 8 does quite obviously discriminate against gays and lesbians, this argument seems to be particularly bizarre and non-reality based. But, more on that later.

In his opening statement, Olson also discussed how Prop 8 singles out gays and lesbians, marks us with a badge of inferiority, and causes "immeasurable harm" to gay and lesbian families. In support of these claims, the plaintiff gays and lesbians discussed how hurtful the pro-Prop 8 ads were. These ads, if you remember, suggested that it would be The Worst Thing Ever if children were merely taught that same-sex marriage existed and that children needed to be "protected" from same-sex couples. The plaintiffs also discussed how being told that they couldn't legal marry made them feel "not good enough" compared to other people. It is "humiliating," they said, and they talked about how they are "outside" of the institution compared to all of their friends who are legally married.

Echoing this sentiment, Professor Nancy Cott, an expert on marriage, discussed how slaves could not legally marry in the US. Once they were emancipated, she testified, slaves flocked to get married, in part because legal marriage signified the rights of full citizenship.

Countering the Prop 8 side's argument that marriage is about procreation, Professor Cott noted that the institution of marriage has always been as much about supporting adults as about supporting children. Furthermore, there have never been requirements that a couple produce children in order for their union to be considered a legal marriage. Also, the term "family" has historically been much more broad than the nuclear family that traditional values advocates would have us believe is the universal norm.

Furthermore, Professor Cott noted that as women entered the workforce and the doctrine of coverture was eradicated, marriage became more "gender neutral." That is, the role of Husband As Bread Winner and Wife As Homemaker became a less realistic description for many people's marriages. Same-sex marriage can now fit within what marriage currently is.

The marriage equality side then introduced Dr. George Chauncey as an expert in LGBT studies. Dr. Chauncey mostly noted the history of anti-gay laws in the US (eg- bar raids, witch hunts, employment discrimination, sodomy laws) and how they were used to indicate social disapproval of gay people and homosexuality. By criminalizing homosexuality, gay life was effectively associated with criminality. Generally, this testimony establishes that gay people share a history of discrimination, which is one of the prongs needed for a group to be considered a "suspect class."

Dr. Chauncey then discusses Anita Bryant's infamous 1977 "Save Our Children" anti-gay crusade which, of course, has striking parallels to the Yes on 8 ads. Playing on these fears, dozens of anti-gay campaigns were successful around the nation. Chauncy argues that the Prop 8 campaign was an extension of Bryant's rhetoric, which marks gay people and our relationships with a badge of inferiority. On cross-examination, the Prop 8 side mostly suggests that Chauncey is a biased "advocate" of the LGBT community. They don't actually address the substance of his claims.

In order to break up this long review of the trial, I will post summaries of subsequent days tomorrow.

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